One way of understanding the exile of the Chagos Islanders and their inability to return to their ancestral land is through a reading of the case from a perspective of post-colonial legal scholarship. Chagossians have strong legal rights to land and remedies of compensation and return through a purposive application of the international legal definition of Indigenous, Magna Carta right to abode and international human rights law that could address their dispossession. Yet, the inability of those rights to be meaningfully applied has been constrained because of the post-colonial way they are legally interpreted, creating a legal vacuum in which basic fairness and substantive equality have been routinely compromised. Drawing attention to the continued legal denial of return in the context of decolonisation, ongoing colonialism and the rule of law makes sense of the legal record and explains the expulsion of the islanders despite the moral merits of return.
National Contact Points (NCPs), which support the OECD Guidelines for Multinational Enterprises, are often invoked as a reliable state-based mechanism for holding transnational corporations accountable for business-related human rights abuses. The objective of this article is to scrutinize the ability of NCPs to offer effective remedy through the lens of an often-quoted success story (the case of the post-colonial brewery Bralima-Heineken at the Dutch NCP) and through a few existing studies that examine factors that curtail or enhance the possibility of NCP mechanisms to deliver effective remedy. Based on these findings, we suggest specific ‘actions for effectiveness’ in the form of recommendations for improving NCPs as a tool to deliver effective remedy. Zooming out, we extend some general observations on how our findings illustrate that NCPs are expressions of a larger systemic problem surrounding the role of law within market globalization and the impact of economic liberalization on the making of norms, changing legal authority and basic fairness under conditions of stark power imbalance. Supporting this approach are historical factors which make the OECD Guidelines and NCPs ripe for such conceptualization.
This chapter provides an overview of the emerging field of transnational constitutional law (TCL). Whilst questions of constitutional law are typically discussed in the context of a specific domestic legal setting, a salient premise of TCL is to view constitutional law and its values by placing them 'in context' with existing and evolving cultural norms and political, social and economic discourses and struggles. Drawing on socio-legal investigations into the relationships between law and non-law and the significance of legal pluralism, TCL considers what role constitutional law and its values might play in shaping and bringing about social and legal transformation within an emerging global economic order in which non-territorially confined spaces of struggle involve transnational actors and social formation dynamics.
In this article I review Borrowing Together: Microfinance and Cultivating Social Ties by Becky Yang Hsu. Introducing the book I analyse the emergence of the microfinance project and the contested debates around its efficacy in the light of backlash resulting from the suicides of over indebted borrowers in India. I contextualise the book through critical socio-legal and transnational legal pluralist scholarship which focuses on the production of norms by private actors, the social and public law consequences of these norms and the growing inter-connectivity of relations. Against this background, I show how Hsu's rich ethnography of two field sites in rural China exposes how the primary drivers for loan repayment are the informal social norms of personhood, morality and social relations that are grounded in a holistic Chinese understanding of personhood called 'Guanxi' in Chinese. A 'Guanxi' typology of personhood connected to material and emotional components and personal relations conflicts with the individualistic typology of personhood upon which the dominant 'Grameen' economic model for group lending microfinance has been based, with the backing of economists like Stiglitz. Hsu shows how examining loan repayment through the lens of the 'living' Guanxi behaviour she observes within her field sites tell us much more about the use, operation and effect of microfinance than a reading of the loan repayment data would expose. In this way, Hsu captivatingly navigates how local 'social' ties and behavioural norms impact upon what people did with microfinance and are thus directly relevant to the development outcomes within her field sites. Her work adds much needed insight into the current work of scholars and development practitioners concerned with understanding where microfinance went wrong and what can be done about it in the context of the project's resurgence.
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